Corporate Legal Services

The American subsidiary of Japanese video game developer Nintendo recently filed a complaint alleging claims of copyright and trademark infringement as well as unfair competition against an operator of a website offering pirated copies of read-only memory (ROM) files collected from Nintendo cartridges without authorization. The case, filed in the District of Arizona, has already resulted in the successful shutdown of the two websites at issue which have been offering unauthorized ROM files, but it may also be an indication that the video game industry might benefit from the use of a freemium platform such as has been developed in the music and movie industries.

As Nintendo’s lawsuit notes, ROMs involve a process of copying video game software from a game cartridge or disc and then making copies of those files available online. These ROM files can then be played using an emulator program that runs on a computer or a mobile phone, mimicking the functionality of physical video game console systems.

Nintendo’s complaint targets the operator of LoveROMS.com and LoveRETRO.co who has made thousands of Nintendo titles available online for free from platforms including the Game Boy, the original Nintendo Entertainment System, Super NES, Nintendo 64 and Nintendo DS, among others. Nintendo alleges that just the top 10 games on the LoveROMs site in which Nintendo is a copyright claimant and trademark owner have been downloaded more than 60 million times. Further, the LoveROMs website allegedly receives more than 17 million visits each month.

According to Luca Hickman, associate and patent attorney at Grimes LLC, although the issue of ROM piracy is a big one in the video game industry, this type of case presents a dilemma for rights holders like Nintendo. “On the one hand, you have certain incentives to police rights,” Hickman said. “On the other hand, you don’t want to be seen as being heavy-handed within the gaming community, which is a particularly strong fan-based consumer base.” While the ROMs themselves might be illegal to offer or play, a Nintendo fan who wants to play the original Donkey Kong game might take a negative view of Nintendo’s legal action if they have no legitimate way to play a game which is no longer supported by consoles currently being marketed by Nintendo.